In HC 4327/08, Diocesan Trustees for the Diocese of Harare v Church of the Province of Central Africa, the applicant seeks the following order –

“It is ordered that:

1. The following persons be and are hereby declared the Diocesan Trustees of the Diocese of Harare:

(i) Bishop Dr. Nolbert Kunonga.

(ii) Mr. Beavan Michael Gundu.

(iii) Mr. Justin M. Nyazika.

(iv) Mr. P.Majokwere.

(v) Mr. Onias Gatawa.

(vi) Mr. Alfred Tome

(vii) Mr. Winter Regie Shamuyarira

2. The property of the Diocese of Harare, whether movable or immovable, owned by the church, within the Diocese, vests in the Diocesan Trustees mentioned in para 1. above.

3. The respondent be and is hereby ordered to give vacant possession/occupation, and control, of the assets of the applicant which the respondent occupies, or possesses, and or, controls, to the Diocesan Board within seven days of the date of this order, failing which , the Deputy Sheriff, with the assistance of the Zimbabwe Republic Police, be and is hereby authorized, on the direction of  the Board, to take occupational possession of any assets of the Diocese, and to hand over any assets, or possession, to the Board.

4. Costs of suit.”

In case no. HC 2792/09, Diocesan Trustees for the Diocese of Harare v Church of the Province of Central Africa, the applicants seek the following provisional order –

“Terms of the Interim Order

(a) That the consecration of a new Bishop by the respondent, on 26 July 2009, or any date thereafter, be and is hereby stopped pending the discharge or confirmation of this order on the return date.”

Terms of the Final Order Sought

(a) That it be declared that Dr. Nolbert Kunonga is still the Bishop of the Diocese of Harare;

(b) That the respondent is barred from recognising any Bishop of the Diocese of Harare until there has been compliance with the Constitution of the respondent; and

(c) That it pays costs of suit.”

In a letter dated 21 September 2007, addressed to the Archbishop and Primate of the Church of the Province of Central Africa,..., Dr. Nolbert Kunonga, in his capacity as Bishop of the Diocese of Harare, had written concerning the formal withdrawal of the Diocese of Harare from the Church of the Province of Central Africa as follows –

“The above refers, from the Bishop of the Diocese of Harare, Diocesan Synod, Standing Committee, Diocesan Trustees, and the whole body of the Church of the Diocese...,.

Consistent, therefore, with our 61^st Session of Diocesan Synod on the 4^th of August 2007, in accordance with the Scriptures, and the will of God, we were mandated by our Synod to dissociate, and sever ties with any individual, group of people, organisation, institution, diocese, province, which sympathizes, or compromises, with homosexuality. We, the Diocese of Harare, would like it to be put on record that with effect from 4^th August 2007, and as confirmed by the Provincial Synod, we are withdrawing from the Church of the Province of Central Africa...,.”

On 16 October 2007, the Dean of the Province of Central Africa and the Bishop of Northern Zambia..., responded in a letter headed “Acceptance of the Withdrawal of the Bishop of Harare from the Church of the Province of Central Africa” -

“I am in receipt of your letter dated 21 September 2007, addressed to the former Archbishop of the Province, the Most Reverend Dr. B.A.Malongo, advising him of the formal withdrawal of the Diocese of Harare from the Church of the Province of Central Africa.

I would first like to advise you that it is constitutionally and canonically impossible to withdraw the Diocese of Harare from the Church of the Province of Central Africa because a diocese, in accordance with the Constitution of the Church of the Province of Central Africa, forms an integral part of the Province. Any act that purports to withdraw a diocese is unconstitutional and uncanonical, as this action is tantamount to altering the very structure and essence of the Province. The Constitution and Canons of the Church of the Province of Central Africa specifically stipulate that any alteration of the Province would require the approval of the Provincial Synod, after the Synod of each diocese in the Province has also approved, and confirmed by the Provincial Synod by a two-thirds majority of those present, and has subsequently been endorsed by the Archbishop of Canterbury as not affecting the terms of Communion between the Church of this Province, the Church of England, and the rest of the Anglican Communion.

Consequently, heading your letter stating 'Formal Withdrawal of the Diocese of Harare from the Province of Central Africa' is unacceptable and misleading. We, however, as the Dean of the Province of Central Africa, accept and acknowledge that you and some of your supporters have, by notice of your letter, severed relationship with the Province of Central Africa.

Therefore, I declare that the See of Harare is, with immediate effect, vacant, and, in accordance with Canon 14(1), I shall be appointing a Vicar General to hold office whilst the necessary steps are taken for the holding of an elective assembly to elect the next Bishop of the Diocese of Harare.

Given your leaving the Church of the Province of Central Africa, we direct that all properties and assets belonging to the Province should be surrendered immediately to the Vicar General whose name we shall give you in a few days time.”  

Certain developments and measures then followed, including the excommunication of the Bishop of Harare, some of the clergy, and laity, the purported formation of the new province, and the ratification of the actions of the Dean of the Province.

Now, if what the applicants did constituted an offence in terms of the Canons of the Church, then they should have been charged, tried, and punished, accordingly. Excommunication is a form of punishment following a trial. It has not been shown that any such trial took place.

The formation of a new Province may be an act in violation of the Canons of the Church, and the Church was within its rights to punish such act in terms of its own procedures. The courts will not interfere, for example, as regards whether or not certain acts are punishable by excommunication or not, as these are issues within the ecclesiastical competency of the respondent. However, no such trials, in terms of Canons of the Church, have taken place. All that the province has done is to make declarations in direct conflict with specific provisions of the Canons.

Canon 24(1) provides that any Bishop, Priest, or Deacon, of the Province “may be accused of and tried in Church Court” for a variety of offences which include schism, and wilful disobedience of Church laws and authorities. There are strict procedures relating to the prosecution of a Bishop, or Priest in terms of Canon 24(2) –

 “No original proceedings shall be instituted in any Church Court -

(a) ...,.

(b) Against a Bishop of the Province, unless it be preferred by at least three priests licenced in the Province, or by two Bishops of the Province, or, if it relates to matters other than faith and doctrine, by at least three priests and three Church Wardens or Councillors, all of the dioceses of the accused Bishop;

(c) Against a Priest, or Deacon, unless leave shall have been given in writing by the Bishop;

(d) ...,.”

The Canons also provide for the need for the issuance of notices to accused persons, the right of appeal in respect of any conviction, the suspension of decisions of the court pending appeal, etc (Canon 26).

There is nothing in the pleadings showing that any of the above things were done, and actual trials held on the basis of which the sentence of excommunication was eventually pronounced.

Nothing.

Re: HC 4327/08

The analysis pertaining to the issue of locus standi has already led to the conclusion that the applicants do have locus standi to bring this application, that they have not been lawfully removed from their positions as trustees, and that until they are so removed, they continue to hold those positions and the property of the Church, in trust.

All the parties in this case claim to be members of the Anglican Church but belonging to rival factions. They are, however, engaged in vicious court battles concerning their legitimacy and entitlement to Church property.

On 24 July 2009 the applicant obtained a provisional order against the first respondent from HLATSHWAYO J under case number HC2792/09 in the following terms:

“TERMS OF THE INTERIM ORDER

(a) That the consecration of a new Bishop by the respondent on 26 July 2009, or any date thereafter, be and is hereby stopped pending the discharge or confirmation of this order on the return date.

TERMS OF THE FINAL ORDER SOUGHT

(a) That it be declared that Dr. Nolbert Kunonga is still the Bishop of the Diocese of Harare.

(b) That the respondent is barred from recognizing any Bishop of the Diocese of Harare until there has been compliance with the Constitution of the respondent.

(c) That it pays costs of suit.”

On the same date HLATSHWAYO J, under case number HC4327/09 granted a declaratory declaring Nolbert Kunonga's Board of Trustees as the legitimate Board of Trustees for the Diocese of Harare. The same order further affirmed that the said Diocese's property is vested in the applicant, that is to say, The Diocesan Trustees for the Diocese of Harare.

Aggrieved by both judgments, the first respondent lodged an appeal to the Supreme Court on the same date, the 24^th of July 2009.

Notwithstanding HLATSHWAYO J's order to the contrary, the first respondent proceeded to consecrate the second respondent as the new Bishop for the Diocese of Harare. In doing so, the respondents were relying on the well-known rule of practice in the superior courts that an appeal suspends the decision appealed against.

The applicant responded by filing this urgent chamber application seeking to enforce HLATSHWAYO J's orders notwithstanding the noting of an appeal against his orders.

The application is premised on numerous grounds – these include:

(1) That the appeal was mala fide in that it was lodged for the mere purpose of by-passing HLATSHWAYO J's orders.

The applicant is the Church of the Province of Central Africa, and is responsible for the affairs of the Anglican Church in Central Africa. The first respondent is its Bishop for Manicaland with whom it has pending cases before the courts for the determination of whether or not he is still its Bishop.

The first respondent leads a faction of the Anglican Church in Manicaland.

The applicant filed this urgent application on the following facts.

On 18 March 2010 the applicant's Registrar, who is the deponent of its founding affidavit, received a call from a member of the public who inquired from him “whether the purchase price of Stand Numbers 91 and 92 Second Street, Mutare, were negotiable.” These are Church assets over which the two factions of the Anglican Church in Manicaland have a pending case before the courts.

The first respondent's faction had, in August 2009, given the second respondent a mandate to sell Stands 91 and 92.

Alarmed by the inquiry, the applicant filed this urgent application seeking a provisional order interdicting the respondents from selling or in any way effecting transfer of the Church's assets...,.

The first respondent does not deny giving the second respondent the mandate to sell the Stands, but says it suspended the mandate when it agreed to the consent order of 12 October 2009.

The first and second respondents opposed the application and raised the following preliminary issues -

1. That the application is not urgent.

2. That the matter is res judicata; and

3. That the applicant and the first respondent do not have locus standi to sue and be sued in this case.

The applicant, in his founding affidavit, states that he is a duly consecrated and enthroned Bishop currently heading the Anglican Diocese of Manicaland. The second applicant is the Anglican Board of Trustees for the Diocese of Manicaland, whereas the first respondent is the Church of the Province of Central Africa.

On 23 September 2007, the Rt. Reverent Elson Jakazi addressed a letter to the Archbishop of the Church of the Province of Central Africa and the Bishop of Upper Shire notifying them of its withdrawal from the Church of the Province of Central Africa. The withdrawal was prompted by disagreements on issues of homosexuality. The letter reads -

“Your Grace

Notification of Withdrawal of the Anglican Diocese of Manicaland from the Church of the Province of Central Africa

The above subject refers.

To put to rest speculation from your office, the Church of the Province of Central Africa, and the rest of the Anglican community, this letter comes to you as confirmation that the Anglican Diocese of Manicaland has withdrawn from the Church of the Province of Central Africa with effect from 21 September 2007. The resolution by the Diocesan community, which is attached, and my submission to the Provincial Synod when I moved a motion on the need for the dissolution of the Province, also attached, and the minutes of the Standing Committee, is a statement of emphasis on this matter by the Standing Committee.

This, your Grace, is the kind of seriousness that we take this matter.

Yours faithfully

Signed

The Rt. Revt Elton Jakazi

Cc All Bishops of the Church of Central Africa; The Bishops of the Church of the Province of Central Africa.”

The Bishops of the Province of Central Africa responded by issuing a statement rejecting the withdrawal of the Diocese of Manicaland but accepted the withdrawal of the first applicant as an individual. The statement reads in part -

“Bishops of the Province of Central Africa Statement on the Diocese of Manicaland Issue

We, the undersigned Bishops of the Church of the Province of Central Africa, at the Extraordinary Episcosal Synod held on 24 December 2007 at the Lusaka Hotel, Zambia, state that we were consulted by the Dean of the Province of Central Africa, the Rt. Revt Chama in connection with the contents of the letter of 23 September 2007 addressed to the Archbishop of the Church of the Province of Central Africa (CPOA) concerning the withdrawal by Bishop Jakazi of the Diocese of Manicaland from the CPOA.

We unanimously concur that:

1. The fundamental declarations, articles of the Constitution, canons, and laws of the CPOA, do not permit unilateral withdrawal of a Diocese from the Province, even if, as alleged by Bishop Jakazi but challenged by many, the Diocesan Standing Committee expresses a desire no longer to be associated with the Province.

2. Bishop Jakazi was, inter alia, expressing his personal attitude and intention to sever all ties with the Province, and was himself withdrawing from the Province.

3. In the circumstances, we accept his personal resignation and withdrawal from the body of the CPOA.” (my emphasis)

The applicant, in a letter written by his Diocesan Registrar, dated 31 October, and subsequently followed up by his own letter, attempted to recant and retract his withdrawal from the Central Province of the Church of Central Africa.

The retraction was met with outright rejection. On 20 December 2007, Bishop Albert Chama advised him of the same in the following terms -

“We write to advise you that following the letter of 31 October 2007, written, on your instructions, by the Diocesan Registrar of Manicaland, Mr. Peter Makombe, retracting your withdrawal from the Church of the Province of Central Africa as per your letter of 23 September 2007 addressed to the former Archbishop of Central Africa, Dr. Bernard Amos Malango, copied to all Bishops of the Province, the Extraordinary Episcosal Synod held at the hotel on 20 December 2007 considered your letter of retraction and decided to uphold the earlier decision taken, and communicated to you, that you are no longer a Bishop of the Church of the Province of Central Africa.

Consequently we, as Dean of the Province of Central, immediately appoint a Vicar-General for the Diocese of Manicaland pending the election of the next Bishop.”    

The first respondent followed up by appointing the second and third respondents in terms of the above letter.

It is an established rule that resignation is a unilateral, voluntary act which takes effect as soon as the resignation has been communicated to the correct person or authority. In the case of Mazengi v Standard Chartered Bank & Anor (2) ZLR 137 this court held that a letter of resignation constitutes a final act of termination by an employee.

What this means is that once the first applicant's resignation letter was received by the Archbishop of the Central African Province of Central Africa, the first applicant automatically ceased to be an employee or member of that Church organization – without any further formalities. Having ceased to be an employee or member of the Church organization, he automatically stripped himself of any rights and privileges arising from the contract of employment, membership, or his status as Bishop of that Church organization.

The first applicant was not dismissed. His was a voluntary act to resign from that Church organization. That being the case, he can hardly be heard to complain or cry foul.  Any appeal or review which he may launch means that he is appealing or seeking a review of his own conduct. This is wholly untenable and illogical, such that it must be incompetent at law. The applicant, having voluntarily divested himself of all rights and privileges accruing to a member, employee, or Bishop, of the Anglican Church Province of Central Africa, he has no residual rights to meddle in the affairs of that organization by barring the appointment of replacement staff.

After hearing submissions from counsel, I dismissed the above application and indicated that my reasons would follow. I now set them out.

On 28 April 2010 this court issued an order barring the applicants from interfering with the first respondent's worshipping at a farm in Mazowe. The order also specifically granted the first respondent access to the farm for the purposes of worshipping and conducting Church services.

The order was granted unopposed.

On 14 May 2010, the applicants approached this court on a certificate of urgency seeking a final order staying the execution of the order granted on 28 April 2010 and also rescinding the order. In the interim, the applicant prayed for an order barring the respondents from conducting any Church service at the farm.

The applicant and the respondents were once one Church, worshipping together at the farm in Mazowe. The founder of their Church, one Mudyiwa Dzangare passed away in May 1989 at the farm – where he was buried. In May of each year his followers hold a congress in his memory. Before his death, Mudyiwa Dzangare is alleged to have told his followers that he would resurrect and presumably come back to lead his flock. A point of divergence emerged amongst his followers with the applicant believing that their dead leader is yet to resurrect in his old form – an event that they await whilst praying at the farm where he died. The first respondent, on the other hand, believes that their founder has resurrected in the form of a baby girl who lives in Guruve – whom they now follow as the leader.

The facts of the matter are these.

On 23 September 2007, the first applicant, who was then a Bishop of the Anglican Church of the Province of Central Africa, the first respondent in this matter, and Head of the Diocese of Manicaland, addressed a letter to the Archbishop of the first respondent, and the Bishop of Upper Shire, notifying them of the withdrawal of the Diocese of Manicaland from the first respondent. The letter read as follows:

“Your Grace,

RE: NOTIFICATION OF WITHDRAWAL OF THE ANGLICAN DIOCESE OF MANICALAND FROM THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA

The above subject refers.

To put to rest speculation from your office, the Church of the Province of Central Africa and the rest of the Anglican community, this letter comes to you as confirmation that the Anglican Diocese of Manicaland has withdrawn from the Church of the Province of Central Africa with effect from 21 September 2007.

The resolution by the Diocesan committee, which is attached, and my submission to the Provincial Synod when I moved a motion on the need for the dissolution of the Province, also attached, and the minutes of the Standing Committee, is a statement of emphasis on this matter by the Standing Committee.

This, your Grace, is the kind of seriousness that we take of the matter.

Yours faithfully

Signed

The Rt Revd. Elson Jakazi  

Cc All Bishops of the Church of the Province of Central Africa.”

The Bishops of the first respondent replied by issuing a statement acknowledging that the first applicant and his supporters had personally resigned or withdrawn from the first respondent and accepting the first applicant's resignation as an individual but asserting that the Diocese of Manicaland could not be withdrawn from the first respondent except in accordance with the latter's Constitution. The statement read in part:

“We unanimously concurred that:

1. The Fundamental Declarations, Articles of the Constitution, Canons and laws of the C.P.C.A. do not permit the unilateral withdrawal of a Diocese from the Province even if, as alleged by Bishop Jakazi, but challenged by many, the Diocesan Standing Committee of that Diocese unanimously expresses a desire to no longer be associated with the Province.

2. Bishop Jakazi was, inter alia, expressing his personal attitude and intention to sever all ties with the Province and was himself withdrawing from the Province.

3. In the circumstances, we accepted his personal resignation and withdrawal from the body of the C.P.C.A.”

Thereafter, on 31 October 2007, in a letter written on his instructions by his Diocesan Registrar, the first applicant sought to retract his withdrawal from the first respondent. The retraction was not accepted by the first respondent, who, through its Bishop Albert Chama, wrote back as follows:

“We write to advise you that following the letter of 31 October 2007, written on your instructions by the diocesan Registrar of Manicaland, Mr Peter Makombe, retracting your withdrawal from the Church of the Province of Central Africa as per your letter of 23 September 2007, addressed to the former Archbishop of Central Africa, Dr. Bernard Amos Malango, and copied to all Bbishops of the Province, the Episcopal Synod held at the hotel on 20 December 2007 considered your letter of retraction and decided to uphold the earlier decision taken and communicated to you that you are no longer a Bishop of the Church of the Province of Central Africa.

Consequently, we as Dean of the Province of Central Africa, immediately appoint a Vicar General for the Diocese of Manicaland pending the election of the next Bishop.”

Following upon this letter, the first respondent proceeded to appoint the second and third respondents as Bishops.This prompted the applicants to file an urgent chamber application in the High Court seeking an order setting aside the appointment of the second and third respondents and declaring the first applicant to be the reigning Bishop for the Diocese of Manicaland until such time as the applicants' appeal has been determined in terms of the provisions of the first respondent's Constitution and canons.

The learned Judge, in dismissing the application, said:

“It is an established rule that resignation is a unilateral voluntary act which takes effect as soon as the resignation has been communicated to the correct person or authority. In the case of Muzengi v Standard Bank & Anor (2) ZLR 137 this Court held that a letter of resignation constitutes a final act of termination by an employee.

What this means is that once the first applicant's resignation letter was received by the Archbishop of the Church of the Province of Central Africa the first applicant automatically ceased to be an employee or member of that church organization without any further formalities.

Having ceased to be an employee or member of the church organization he automatically stripped himself of any rights and privileges arising from the contract of employment, membership, or his status as Bishop of that church organization. The 1st applicant was not dismissed. His was a voluntary act to resign from that church organization. That being the case, he can hardly be heard to complain or cry foul. Any appeal or review which he may launch means that he is appealing or seeking a review of his own conduct. This is wholly untenable and illogical such that it must be incompetent at law.

The applicant, having voluntarily divested himself of all rights and privileges accruing to a member, employee or Bishop of the Anglican Church of the Province of Central Africa he has no residual rights to meddle in the affairs of that organization by barring the appointment of replacement staff.”

The facts are common cause. The law is clear. Resignation is a unilateral act which takes effect upon being communicated. See Riva v NSSA 2002 (1) ZLR 412 (H)…, where the Court said:

“It is common cause between parties that the giving of notice is a unilateral act; it requires no acceptance thereof or concurrence therein by the party receiving the notice, nor is such party entitled to refuse to accept such notice and to decline to act upon it. It seems to me to follow that notice once given is final and cannot be withdrawn except obviously with consent…,.”

See also Muzengi v Standard Bank Zimbabwe & Anor 2002 (1) ZLR 334 (S)…,.

The above cases clearly show that the first applicant could not unilaterally withdraw his resignation from the first respondent.

The first applicant has submitted that he did not withdraw in his individual capacity but as a Diocese.

This issue was settled in The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC48-12 where the Bishop of Harare raised the same argument as is now being raised by the applicants herein. The Court held that the Bishop of Harare had resigned his office.

Further, as the respondents submitted, the letter of resignation demonstrates quite clearly that the stated position taken therein was that of the first applicant and others who wished to withdraw from the first respondent. “This, your Grace, is the kind of seriousness that we take of the matter” said the first applicant in the letter.

Moreover, since the Diocese itself could not be withdrawn by the applicants from the first respondent, it seems to me the respondents are correct in their submission that the applicants were withdrawing in their individual capacities.

In view of the above, the applicants have not established that there are any prospects of success on appeal. It follows that, in the result, the application must fail.

The applicants in this matter are the purported Bishop of a church together with the Church as the second applicant. The order sought is temporary relief as follows:

1. The respondents and their agents are ordered to vacate the applicant's Temple at Number 5563 Mkosana Township, Victoria Falls.

2. The respondents are ordered to surrender the control and use of the Temple at No.5563 Mkosana Township, Victoria Falls to the applicants forthwith.

3. The respondents are barred from harassing and barring the applicants and their members from accessing and using the Temple at 5563 Mkosana Township, Victoria Falls as they deem fit.

This is a church dispute gone awry in which the respondent was elected Bishop of the applicant in an election conducted on 21 March 2015 whose process and outcome has been disputed by other members of the church who say they are the majority. They have, by resolution passed at an extraordinary general conference held on 28 March 2015, resolved inter alia:

“That the Evangelical Church of Zimbabwe declares null and void the unconstitutional elections of the Bishop of The Evangelical Church of Zimbabwe held by minority members of the Denomination at the Ministry Centre on Saturday 21 March 2015. Therefore, the church does not recognize Reverend Isaac Soda as its newly elected Bishop.”

In arriving at that resolution, those involved cited the violation of the applicant's Constitution in the process. The applicant is a universitas constituted and governed by a Constitution and therefore can only function and be run in accordance with that Constitution. It is alleged that while Article VIII C of the Constitution and church practices require the co-ordination of the election by a five member Selection Committee, the election was co-ordinated by only two members of the committee.

While ballot papers should be sent out following the approval of the Church Council, which should pass a resolution sanctioning the holding of an election, this was not done. The wives and friends of the candidates, and one of the candidates, are the ones who distributed ballot papers instead of the Church Overseers as is the procedure. In breach of Article VIII C(1)d) of the Constitution, the Selection Committee did not consult the Pastors' Council on the suitability of election candidates.

In breach of Article VIII C (1)(g), the Selection Committee shortlisted only two candidates for the position of Bishop instead of three (3) and disqualified the third candidate. The final nomination forms were not issued in accordance with the Constitution which requires that they be issued within the period of 30 days preceding the Annual General Conference. One of the two candidates was not qualified as he is not a holder of a first Theological degree as required by Article VIII A(v) of the Constitution. The two Selection Committee members intimidated voters by threatening unspecified legal action if they did not proceed with the election.

The applicant states that the respondent appeared to recognize the power of the majority members to nullify the election results when he approached this court by court application filed on 29 April 2015, in HC3889/15, in which he seeks the following order;

“IT IS HEREBY ORDERED THAT

1. The election process for the election of the Bishop of the 1^st respondent be and is hereby upheld and confirmed.

2. Applicant be and is hereby declared the Bishop of the 1^st respondent for the next 5 years.

3. 2^nd – 6^th respondents be and are hereby interdicted from interfering with the business of 1^st respondent.

4. Respondents to pay costs of suit.”

In that application, the respondent cited the present applicant as the first respondent and five other people, the secretary of the Church Council, the current Bishop, the treasurer and the chairpersons of the Constitutional Committee and the National Women Fellowship. It would appear, however, that the respondent may have grown impatient while waiting for the rusty old train of this court to deliver justice to him because the applicant complains that before the determination of his application for a declaratur the respondent caused notice to be sent out through his supporters on 3 May 2015 announcing his intended inauguration on 9 May 2015 at 10am at the applicant's head office.

It should be noted, however, that 9 May 2015 was set as the date of the inauguration at a meeting of the Church Council held on 1 April 2015 which was chaired by the Vice Bishop Reverend A Mateva. If a notice was sent out on 3 May 2015, as alleged by the applicant, and triggered the filing of this application, it was in fulfillment of a resolution which was already in place. Be that as it may, the applicant says it is the announcement made on 3 May 2015, which the respondent denies making, which prompted it to make this urgent application seeking to interdict the respondent from staging the inauguration. The full text of the relief that the applicant seeks is in the following:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The election held on 20-21 March 2015 for the contesting of the position of Bishop of the applicant be and is hereby declared null and void and of no force or effect.

2. Respondent be and is hereby declared as not being duly elected Bishop of the applicant in the elections held on 20-21 March 2015.

3. The respondent to pay costs of this application on an attorney and client scale only if he opposes it.

INTERIM RELIEF GRANTED

That pending determination of this matter, the applicant is granted the following relief:

1. The inauguration of the respondent as the applicant's Bishop on 9^th May 2015 at applicant's head office be and is hereby stopped from taking place.

2. The respondent be and is hereby ordered not to interfere in any unlawful manner in the operations and business of the applicant.

3. The respondent be and is hereby ordered not to use (his) supporters to interfere in any unlawful manner in the operations and business of the applicant.”

It is the interim relief that the applicant seeks which is the concern of the present inquiry.

However, the respondent has taken essentially two points in limine, namely, that the deponent of the founding affidavit, David Chiveso, does not have locus standi in judicio to represent the applicant in any legal action, and, as such, is ill-suited and that the matter is not urgent; it being self-created urgency which should not be entertained at all.

After hearing arguments in this matter, I granted an order confirming the provisional order issued by this court on 17 February 2015 and said the reasons for doing so would follow. These are they.

The first applicant is a common law universitas constituted in terms of a Constitution for the purpose, inter alia, of fellowship among its members. The second applicant is its Overseer. The first respondent was, at the material time, the appointed co-ordinator of the first applicant who was acting on its behalf when the first applicant made an application to the second respondent, the local authority owning vacant land, for a vacant Stand for purposes of constructing a church.

Apparently the church did not have premises of its own, did not have an address, and used the first respondent's residential address, being Z29 Mzilikazi Township, Bulawayo as its address.

The spirit that filled the first applicant church to take the initiative in the furtherance of its objectives is commendable indeed and the local authority must be congratulated for responding swiftly to the clarion call, so to speak. By letter dated 1 September 2014, the local authority acceded to the application and allocated the first applicant Stand 18732 Thorngrove, Bulawayo as a church Stand on certain terms and conditions set out therein. The first applicant accepted the offer by paying the requisite $115= for preparation of the lease agreement and facilitated the flighting of a newspaper advertisement of the proposed lease of the Stand in the local newspaper.

It is then that greed and the pursuit of self-interest set in and got the better of the first respondent, the co-ordinator of the applicant. When the lease agreement was generated by the second respondent, she intercepted it, and, purporting to now represent another church, Zambuko Apostolic Faith, whose head office is her residential address, No. Z29 Mzilikazi, Bulawayo and has one of its objectives, the object to bury the dead, the first respondent wrote a letter to the second respondent which reads:

“REF: ER 8-301

Please may the Bulawayo City Council be advised that in connection with the church Stand application, Ref ER 8-301, only the undermentioned first three individuals are responsible for the Stand application and payment between the church and the City of Bulawayo and that the City of Bulawayo should not tolerate any other individuals as they emanate from Harare. Please check in your files that through the Co-ordinator, Eunice Mlauzi, made (sic) the Stand application for their congregants as you the City of Bulawayo have rightfully responded to the Stand application using the proper address of communication.”

The letter is signed by the first respondent and two other individuals and represents the highest level of turpitude and indeed falsehood especially as it is the first applicant which made the application and paid the lease agreement fee. The first respondent gleefully latched onto the use of her address in the application and the fact that as the then Co-ordinator of the first applicant it is herself who had submitted the application in an effort to sustain her weird argument that the Stand was allocated to herself or her new church. That way she signed the lease agreement with the municipality on 24 November 2014 along with her two lackeys purporting to represent “Zambuko Apostolic Church” when her new organization has been christened “Zambuko Apostolic Faith.”

When the applicants discovered the scheme, they launched an urgent application and obtained from this court a provisional order interdicting the first respondent from purporting to act on their behalf and directing her to surrender the original agreement with the second respondent.

It is the confirmation of that provisional order which is opposed by the first respondent.

In her opposing affidavit, the first respondent states that she now leads “a splinter Zimbabwe Apostolic Church.” While admitting that she was indeed the Co-ordinator of the first applicant, she maintains that owing to differences “we split and went away on (sic) with other members of the Zambuko Apostolic Faith Church.” The first respondent denies any fraudulent misrepresentation or any unlawful conduct on her part. To her, the first applicant should apply for another Stand as the one in dispute belongs to her and her faction.

This matter resolves itself on the basis of those facts which are either common cause or cannot possibly be disputed. They are that the application for allocation of a church Stand was made by the fist applicant. It being an association it could only do so through its officers, in this case the Co-ordinator, who authored the application letter on its behalf. The second respondent allocated the Stand to the first applicant and accepted its payment for the lease agreement. It did not allocate it to the first respondent or her splinter church. In fact, when she wrote the letter I have cited above, the first respondent was engaging in an exercise in self-aggrandisement; sacrificing the common good in favour of personal gain. In that ill-fated misadventure she misled the second respondent into believing that she was the applicant or that she still represented the applicant for land.

Even if indeed there has been a split which has resulted in the first respondent going away to form another church that cannot help her at all. The first respondent and her fellow congregants, who may be only three in number, have left the first applicant church- by their own admission. Therefore, a secession has occurred, and, as such, the first respondent cannot lay a claim on the property of the original church.

That is a point that has already been authoritatively settled by the Supreme Court in The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare 2012 (2) ZLR 392 (S)…, where MALABA DCJ remarked:

“The principle is that, in the absence of express provision in the Constitution of a voluntary association, such as a church, property held in trust must be applied for the benefit of those who adhere to the fundamental principles of the association. Related to this is the principle that a member of a voluntary association who leaves the organization whilst others remain must leave the property with those who have not resigned membership. When one leaves a club one does not take its property with him or her. It has long been established as a salutary principle of law in this area of property ownership that when one or more people secede from an existing church they have no right to claim church property - even if those who remain members of the congregation are in the minority.” See also Guta Ramwari v Waduka and Others HH470-14.

In my view the matter is resolved.

The first respondent and her group having left the first applicant church, they cannot claim the Stand which was allocated to the original church. It matters not that the first respondent participated in securing the Stand. She did so for the church in her capacity as its Co-ordinator. It was not in her personal capacity….,.

In the result, it is ordered that:

1. The provisional order issued on 17 February 2015 is hereby confirmed.

2. It be and is hereby declared that the lease agreement concluded by first and second respondents is null and void.

3. The second respondent is hereby directed to conclude a lease agreement with the first applicant for Stand 18732 Thorngrove, Bulawayo within 24 hours of the granting of this order.

4. The costs of this application shall be borne by the first respondent on the scale of legal practitioner and client.

When matters religious end up in court with congregants at each other's throats you know something is badly wrong; for, as someone once said, religion is the opium of man.

In this church dispute, the parties are fighting over the control of a church building situated at Stand 8583 Glen Norah Township, Harare (“the church”) which is held by the applicant under Deed of Transfer Number 6411/2006; it having been transferred on 6 September 2006 from the City of Harare.

The applicant is a voluntary church organisation governed by a Constitution which has its headquarters at Number 56008 Old Lobengula, Bulawayo and has other branches around the country including the Glen Norah Church. It is led by a Supreme Council at an international level and a National Council at a national level in terms of Art 12 of its Constitution. There are other subordinate councils within its structure. The applicant follows the teachings of its founder, one Taxwell Tayali. It is the applicant, through its structures, that has been operating from the church. However, differences of opinion manifested themselves quite a long time ago as a faction emerged propagating different beliefs and styles of worship. As tensions mounted, a reciprocal peace order was granted by the Magistrates Court in Harare on 19 August 2008 in terms of which the feuding parties were to keep peace; with one group worshipping at the church in the morning between the hours of 7am and 12 noon. The other group was to worship in the afternoon between the hours of 1pm and 5pm.

As with anything human, the peace order lapsed and was not renewed.

That is not all, the group of members constituted by the three (3) respondents and others decided to draw up, and register, another Constitution on 3 January 2014 departing significantly from the dogma and other teachings of the applicant's founder, Taxwell Tayali, but still maintaining the name Guta RaMwari. It is led by an Administrative Council. It has its headquarters in Tshabalala, Bulawayo - having moved from the applicant's Lobengula headquarters. The teachings of the applicant church are captured in the preamble to the 6th Amendment of the Constitution which reads in part:-

“Whenever God the Almighty declares His presence on earth this declaration afflicts many conceited people who claim to know when, where and how God should reveal Himself to man; 'I HAVE COME, I AM GOD THE CREATOR.' This declaration was made on January 31, 1961 through an ordinary man, Taxwell Tayali, while Mrs Laizah Tayali was praying. He was assaulted and rejected by some of the Guta RaMwari members after this divine pronouncement, but God the Almighty chose twelve families and gave them the Holy Spirit. Those twelve stood firmly against the rest who had rejected the divine relevation. At His own time, God led the twelve out and away from all those who had rejected Him and established Guta RaMwari at Mpopoma South in Bulawayo, Zimbabwe on July 22, 1962…, Whereas a simple man cannot claim to be God of all nations and whereas he cannot perform miracles unless God is with him, there, therefore cannot be any demonstration of significant works and accurate forecasting of events which are miraculous to mankind except if God is in that particular person.”

The teachings of the church whose Constitution was registered on 3 January 2014, to which the three (3) respondents are members, are contained in its preamble which reads in part:-

“Whereas God the Creator has appeared in the past to man in different countries and different places and in different ways, and whereas he has done all this at his own will, it has now pleased God to reveal himself to the people in Guta RaMwari all over the world. Guta RaMwari is a religious organisation established by God for curing illness and troubles as well as preaching his Word pronounced as Standing Orders contained in the Holy Literature.

DEDICATION PREFACE

We, the members of Guta RaMwari;

(a) Being the product of God's Promise, testify that Guta RaMwari was founded by God in 1954 in Zimbabwe, Africa.

(b) Testify to the existence of God the Holy Spirit in our midst and commune, worship him directly.

(c) Believe God's declared purpose of revealing Himself was to free humanity from physical and spiritual afflictions.

(d) Believe and testify that God is the Holy Spirit.

(e) Testify that, as Congregants, we are equal before God and no individual has oversight powers in Guta RaMwari.

(f) Affirm to do our best to follow the Guta RaMwari standing orders and all the Holy Statutes faithfully and religiously.

(g) Accept that the decision-making powers, authority and control shall vest in Guta RaMwari whose interest shall be represented by the Administrative Council, International.

(h) Accept to be bound by the resolutions adopted by the leadership of Guta RaMwari in a properly constituted meeting.”…,.

Clearly, there has been a departure from the belief that God expresses himself through the chosen one, originally Taxwell Tayali, and the chosen 12 families given the Holy Spirit, and other related beliefs, as the new church now sharply rejects those beliefs electing instead to worship God “directly” as equals with no individual having “oversight powers.” A schism has therefore occurred with the respondents and their kind standing for different teachings. More importantly, those that have altered their religious outlook, like the three (3) respondents have remained firmly at the church resulting in simmering discontent and conflict.

The applicant has come to court complaining that the respondents, after voluntarily terminating their membership and allegiance to the applicant, have resorted to causing chaos at the church. While their colleagues in Bulawayo moved away and set up their own church in Tshabalala, the respondents have forced themselves on the Glen Norah branch. The applicant complains, bitterly, that on 10 August 2014 the respondents attended the applicant's church service. While Senior Evangelist Fabian Jacha was announcing the church roster, the first respondent interrupted him rejecting the roster. He then instructed the third respondent to prepare another roaster subscribing to the doctrine of the breakaway church based in Tshabalala, Bulawayo. The respondents allegedly threatened violence against those who disagreed with them. A week later, on 17 August 2014, the third respondent announced their own roster forcibly as he had not been accorded the floor being an outsider at the church. He also threatened to announce a new chairman for the applicant's church on 24 August 2014. This forced the applicant to file this urgent application on 22 August 2014 seeking the following relief:-

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:-

1. The interim relief sought is confirmed as final pending finalisation of the Applicant's court action under case number HC5646/14.

2. The respondents shall pay the costs of suit.

INTERIM RELIEF GRANTED

Pending the determination of this application, the applicant is hereby granted the following relief:

1. The respondents, their agents or assignees be and are hereby ordered forthwith to desist from any action intended to disrupt the peaceful conduct of church services by the applicant church by threat or words or in any manner whatsoever resulting in the applicant's church services being unlawfully interfered with at its Glen Norah branch, Harare located on Stand No.8583 Glen Norah, Harare pending the return date of this matter.

2. The respondents, their agents or assignees be and are hereby barred from interfering in any manner whatsoever with applicant's duty roaster pertaining to the conduct of its church services at Stand No.8583 Glen Norah, Harare pending the return date of the matter.

3. Any duly attested member of the Zimbabwe Republic Police is authorised to enforce para 1 and 2 above to maintain peace and order using any such appropriate means as (are) permitted by law.”

The application has been opposed by the three (3) respondents who, although not denying being members of the church called Guta RaMwari governed by a Constitution registered on 3 January 2014, claim an entitlement to the church building arguing that it is in fact owned by the new church. As to how this would be so when the property was acquired and transferred on 6 September 2006, before the new church was established, we are not told. The respondents also do not dispute that they belong to the same church which left the applicant's headquarters in Lobengula, Bulawayo to set up base in Tshabalala Bulawayo. It is not clear why the same could not be done in Harare. What is, however, clear, even by the respondents' own admission, is that there is chaos at the church, caused by differences in religious beliefs, of people trying to worship together from the same building at the same time. The second respondent states, at paragraph 11 of his opposing affidavit, which is verified by the first and third respondents, that:

“There are alternative remedies in this matter, the applicant can sue the respondents for damages (what logic!) and can get them arrested and/or just wait for the outcome of the pending cases in Harare and Bulawayo which cases shall determine the real issue between us, i.e. ownership of the right to the name Guta RaMwari. The parties are praying together currently owing to the applicant's having imposed themselves on our membership worshipping time.”…,.

It is that kind of chaos and confusion which cannot be allowed to perpetuate in any civilised society.

It is not possible for two (2) different religious groups, advancing varying religious teachings, to “pray together.” That would be a recipe for disaster and a dangerous state of affairs. The situation on the ground is not only hostile and unstable indeed - it cries out for intervention….,.

In essence, what the applicant seeks is a temporary interdict.

In Ericksen Motors (Welkon) Ltd v Proten Motors, Warrenton and Anor 1973 (3) SA 685 (A)…, (quoted with approval by SANDURA JA in Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000 (1) ZLR 85 (S)…,.) HOLMES JA stated the requirements for a temporary interdict as:-

“The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. Where the right which it is sought to protect is not clear, the court's approach in the matter of an interim interdict was lucidly laid down by INNES JA in Setlogolo v Setlogelo 1914 AD 221 at p 227. In general, the requisites are:

(a) A right which, though prima facie established, is open to some doubt;

(b) A well-grounded apprehension of irreparable injury;

(c) The absence of ordinary remedy.

In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant if the interdict is withheld, against the prejudice to the respondents if it is granted. This is sometimes called the balance of convenience. The foregoing considerations are not individually decisive, but are inter-related; for example, the stronger the applicant's prospects of success the less the need to rely on prejudice to himself. Conversely, the more the element of 'some doubt,' the greater the need for the other factors to favour him…,. Viewed in that light, the reference to a right which, 'though prima facie established is open to some doubt', is apt, flexible and practical, and needs no further elaboration.”

I have already stated that the papers before me suggest that the respondents belong to a group that has abandoned the teachings of the applicant and registered a new Constitution governing its religious teachings; it is an organisation that came into place only in January 2014 - long after the church being fought over was acquired. Prima facie, the applicant has a right over the church.

The evidence before me suggests that the respondents are causing a commotion at the church, expounding certain alien teachings and disrupting the smooth running of church services. Therefore, there is a well-grounded apprehension of irreparable harm for, apart from the danger of polluting the applicant's congregants, there is interference with their Constitutional right of worship. There can be no other remedy available to the applicant than the interdict sought….,.

I am of the view that the balance of convenience also favours the applicant. The respondents' fellow congregants have left the applicant's institutions intact to set up on their own. Having abandoned the applicant's teachings, it is convenient for the respondents' to follow suit instead of trying to transform the applicant. I am also mindful of the fact that the Supreme Court has ruled, in the case of The Church of the Province of Central Africa v The Diocesan Trustees for the Diocese of Harare SC48-12…, that where a schism has occurred, the party leaving the church cannot lay a claim to the property of the church. At page 36 of the cyclostyled judgment, MALABA DCJ stated:-

“The principle is that in the absence of express provision in the Constitution of a voluntary association, such as a church, property held in trust must be applied for the benefit of those who adhere to the fundamental principles of the association. Related to this is the principle that a member of a voluntary association who leaves the organisation whilst others remain must leave the property with those who have not resigned membership. When one leaves a club one does not take its property with him or her. It has long been established as a salutary principle of law in this area of property ownership that when one or more people secede from an existing church they have no right to claim church property - even if those who remain members of the congregation are in the minority.”

Indeed, where a number of people group together to establish a Christian church for purposes of promoting certain defined doctrines of religious faith, the property which the church acquires is impressed with a trust to carry out the purpose and a majority of the congregation, such as the respondents who claim to belong to the majority of members of Guta RaMwari, cannot divert the property to uses inconsistent with such defined religious doctrines against the will of a minority of the congregation: Chong v Lee (1981) BCLR 13…,.

I am therefore satisfied that the applicant has made out a case for the relief sought. Accordingly, I grant the provisional order in terms of the draft.

This is an appeal against the whole judgment of the High Court of Zimbabwe dated 20 May 2015.

The order sought to be impugned reads as follows:

“IT IS DECLARED THAT,

1. 1^st, 2^nd, 3^rd and 4^th Respondents are no longer members of Applicant and have lost all rights to fellowship under applicant or to make use of any of its properties or amenities as well as its name.

2. 1^st, 2^nd, 3^rdand 4th respondents shall immediately stop and shall at all times desist from making use of applicant's name or any such name which may reasonably be confused with applicant's name and which may give the impression that they have any association with applicant.

3. 1^st, 2^nd, 3^rd and 4^th respondents shall immediately relinquish possession and use of all of applicant's properties both movable and immovable whether held by them directly or by those claiming the right of any use of occupation through them and which are set out in paragraph “3.1” below and shall concede such use and possession to applicant.

1. LAND AND BUILDINGS

1. Bulawayo: church at Stand 61000, Size Road, and adjacent Stands for youth and women, Western Commonage No.6 Pelandaba;

2. Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;

3. House at No.16 Amantje Road, Four Winds, Bulawayo;

4. Greengables Farm, the remaining extent of subsdivision B of Dunstaal, Khami;

5. Plot 11 and 12, Shamrock Road, Gweru;

6. Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;

7. Kwekwe: Stand No.383 Mbizo Township Church and residence, Amaveni Township Church;

8. Kadoma: Stand No.4 Bwanali Street, Rimuka Township Church and Mission residence;

9. Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;

10. Masvingo Stand; 14 Mucheke Township, Masvingo;

11. Mutare: Stand No.7 Machekaire Street, Dangamvura Township, Mutare;

12. Buhera: Murambinda Township Church Stand;

13. Nyanga: Church at Bonde Kraal;

14. Mount Selinda: Chako Township Church Stand;

15. Chinhoyi: Stand 1159 Hunyani Township Church and residence;

16. Mahororo Business Centre Church, Hurungwe;

17. Beitbridge: Stand 2384 Dulibadzimu and residence at No 9;

18. Victoria Falls: Stand 2647 Victoria Falls;

19. Kariba: Stand 1727 Nyamhunga Township;

20. Chiredzi: 51 Makaza, Triangle, No.6 Nzimbe Township, Triangle;

21. Mwenezi: Sarahuru Township Church;

22. Mutoko: Mutoko Business Centre Church Stand;

23. Pilgrims' Progress Restaurant, Kadoma;

24. Pilgrims' Progress Restaurant, Gweru;

25. Bindura: 19/34 Musvosve Street Stand at Chipadze Township and Trojan Mine;

26. All motor vehicles and church assets under their control;

27. Chipinda Church Stand; and

28. Hwange: No.2 Glencoe Road, Railton, Hwange.

4. 1^st, 2^nd, 3^rd and 4^thRespondents are to bear the costs of this application.”

The background to this matter is clearly set out in the judgment of the court a quo and may be summarized as follows:

The Apostolic Faith Mission of Portland, Oregon, is a church corporation of the State of Oregon, USA; which church was established in 1906 with its headquarters in Portland, Oregon, and is hereinafter referred to as the “mother or parent church”. It is headed by a Superintendent General. One of the mother/parent church's premier goals is to disseminate biblical truth and evangelise the world. In advancing this goal, the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) was established in 1955 (hereinafter referred to as the “local church”).

The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) (the “local church”) is the respondent in casu.

The mother church has other branches in a plethora of Southern Africa countries, inter alia, South Africa, Malawi and Angola. The local church is governed by a Constitution like any of the other branches of the mother church in Southern Africa. The first Constitution of the respondent was promulgated in 1968 and then amended in 1985 and 1996. In terms of Article 1 of the respondent's amended Constitution, the respondent was established as a branch of the mother/parent church. The appellants sought to further amend the Constitution in 2012 which purported amendment, however, was not endorsed by the mother church. The first appellant was appointed Overseer of the respondent in 1985. It was during the stewardship of the first appellant that an issue arose concerning the existence of two choirs in the respondent's church.

The pith of the dispute related to whether there was need for the choir to wear a uniform and dress in a particular manner.

The mother church was informed of the dispute and it directed that both choirs be disbanded. The first appellant did not act in accordance with this direction from the mother church. Rather, the first appellant wrote to the mother church indicating that he would consider withdrawing from the Board and from being an Overseer if the issue of uniforms was not dealt with to his satisfaction.

The Director responsible for Africa, one Reverend Baltzell, visited the respondent with the intention of retiring the first appellant and appointing a replacement. Alive to this fact, the first appellant instituted legal action. Subsequently, Darrel D. Lee, the Superintendent General, wrote to the first appellant communicating his removal from the position of Southern Africa Overseer with effect from 21 April 2005, leaving him as an ordinary member of the church.

Aggrieved by his removal, the first appellant instituted legal action which saw him obtaining a provisional order in terms of which he would remain Overseer of the respondent. This provisional order was, however, subsequently discharged. The first appellant appealed against this judgment. The appeal, however, lapsed and was deemed dismissed. On 7 February 2008, following an application made by the first appellant, the respondent's removal was invalidated, unopposed, under case HC/1170/05 and the subsequent application for rescission was dismissed.

The application a quo was, however, not premised on the previous removal of the first appellant. The material events that led to the appealed judgment are set out hereunder, as outlined a quo:

“In November 2011, the Head of the parent church visited the country and the (first appellant) barred him from accessing the church branches and buildings for conducting services. This matter spilled into the courts again with the parties subsequently agreeing to resolve their differences outside the court. In the same month, the first (appellant) issued summons for the eviction of pastors he did not agree with from church premises. He appointed new pastors and replaced those he perceived to be siding with the parent church. This development culminated in further tensions in the church. On 25 January 2012, the first (appellant) was suspended from membership of the church by the parent church. The reason for this was that he had breached the cannons of the church and violated spiritual doctrines by continuing to litigate against the faithful and that he had failed to submit to the authority of the church in breach of the church's Constitution. Further, that his conduct had led to the creation of disharmony within the church and that he had appropriated the church's assets to his own use. The other complaint was that he was effecting amendments to the Constitution without authority.”

The letter of 25 January 2012 suspended the first appellant “immediately from all activities associated with the church” and stated further that “during the suspension and pending the finalization of investigations and any subsequent disciplinary hearing that might be conducted against you, you shall not set your feet (sic) at any of the church's premises. You shall also not conduct any church service. You shall also be expected not to interfere with church members wherever located in Southern Africa..,.”

Against these charges, the first appellant instructed his legal practitioners to write to the Head of the parent church. The contents of this letter, dated 3 February 2012, read as follows:

“Dear Sir

RE APOSTOLIC FAITH MISSION OF PORTLAND AND OREGON UNITED STATES OF AMERICA VS REVEREND RICHARD SIBANDA AND APOSTOLIC FAITH MISSION OF PORTLAND OREGON (SOUTHERN AFRICAN HEADQUARTERS) AND THE BOARD OF TRUSTEES – CONSTITUTIONAL AMENDMENT

We refer to the above matter and advise as you may well know that we are lawyers for the Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc. and the Board of Trustees of same, and, of course, Reverend Sibanda, the Overseer of the Southern African Headquarters;

1. The Southern African Headquarters is a legal person governed by its own Constitution and we advise that the Constitution was formed by the Board of Directors of Southern Africa duly convened and called for that purpose.

2. The same Constitution is subject to amendment by the same Board of Directors duly convened for that particular purpose.

3. The historical relationship between Southern Africa and America was born out of historical issues of the refusal by the Colonial Government to accord indigenous people the right to preach the Gospel without external white missionaries. For the record, America and Southern Africa have a spiritual relationship; a look at the previous Constitutions and your reference to the history of the church in Southern Africa will vindicate this position.

4. In our view, a look at the amendments is not only reasonable but logical and was inevitable and on p8 are the proposed trustees chosen by the people of Southern Africa. The choice is yours, to either understand the amendments and try to build on a great relationship with Southern Africa under an affiliate status or choose to listen to people who appear to be feeding you with false information. For your information, the whole Board of Directors and the Board of Elders and the Brothers and Sisters in the faith in the greater Southern Africa are prepared to proceed with the amendments of the Constitution.

5. For the record, our clients collectively have decided that they will not accept the leadership from America. The Board of Directors, Elders and Church members have enough sense and intelligence to choose their own leadership. Finally, the same God you serve is the same God they serve and He will give them guidance on succession issues.

May we have your response, if any, within seven days?”

The episodes that followed after this letter are that the first appellant was called to a disciplinary hearing to respond to the charges preferred against him. The charges were, inter alia, that the first appellant had violated Articles VI and VII of the respondent's Constitution by deliberately refusing to submit to the authority of the parent/mother church and that the first appellant had violated the Constitution as read with doctrinal rules of the Apostolic Faith Church of Portland, Oregon (Southern Africa Headquarters) in that in or around December 2011, the first appellant had elected to settle his personal disputes with church brethren in the High Court of Zimbabwe rather than as dictated by the Bible.

The first appellant did not attend the disciplinary hearing to determine charges laid against him set for 22 March 2012. The hearing nevertheless went ahead and it was resolved that the first appellant's suspension be “confirmed”. Rev. Onias Z. Gumbo was then appointed as Overseer in the place of the first appellant.

Undeterred by the suspension, the first appellant maintains that he is still the Overseer of the respondent.

On 22 March 2014, the appellants issued summons against the superintendent of the parent church challenging the first appellant's suspension and seeking nullification of Reverend Gumbo's appointment and an order interdicting him from interfering with the church operations. The parent church counter-claimed seeking a declaration of the lawfulness of the suspension and the interdiction of the appellants from acting as Overseer and Board of Directors of the local church. This action does not seem to have been pursued to finality for reasons that are not clear from the record. Instead, the respondent filed an application for a declaratory order in the court a quo essentially seeking the same relief as in the counterclaim. The terms of the order prayed for, which order was granted by the court a quo, have already been quoted above.

Aggrieved by that order, the appellants noted this appeal on the following grounds of appeal:

“1. The High Court erred in finding that the respondent, being a universitas with power to sue and be sued in its own name, could not secede from the Apostolic Faith Mission of Portland Oregon.

2. The High Court further erred in finding that the respondent had an interest in suing its Overseer and its Board of Trustees, the Appellants, when the letter of the 3^rd of February 2012 was written on behalf of the respondent, its leadership and its members.

3. The High Court further misdirected itself in finding that the letter of the 3^rd of February 2012 amounted to a resignation by the (appellants) from the (respondent) or a denunciation of the doctrine of the church.

4. The High Court misdirected itself in finding that the (appellants) had shown conduct as to amount to sensation (sic) (secession?) when there was no evidence to that effect.

5. The High Court misdirected itself in finding, as it did, that the (appellants) had adopted a new Constitution for the applicant when in fact they had not proceeded with the proposed amendments.

6. The High Court further erred in failing to find that the (respondent) church, through the Overseer, the 1^st (appellant), had the authority to appoint its own leadership, that is the Board of Trustees, and, therefore, the communication that the applicant's leadership would be appointed locally could not amount to denunciation of the American church.”

At the hearing of this matter, additional grounds of appeal were moved and granted through an amendment as follows:

1. The learned judge in the court a quo erred in not finding that the respondent did not have the requisite capacity to bring the action in this matter and/or that it required the support of the church in Oregon, USA.

2. The learned judge in the court a quo erred in not finding that the application was, in any event, fatally defective as the deponent to the founding papers was barred from representing the respondent.

3. The learned judge of the court a quo erred in finding that the first appellant ceased to be District Superintendent and ought to have found, therefore, that the application was a nullity.

The appellants then prayed for the setting aside of the judgment of the High Court and its substitution with an order dismissing the declaratory application with costs….,.

This Court, therefore, is seized with an appeal seeking to overturn a declaratory order granted a quo. From a close reading of the grounds of appeal, two questions call for determination and these are:

1. Whether the respondent had the requisite locus standi to sue?

2. Whether the appellants had ceased to be members of the respondent?...,.

Whether the appellants had ceased to be members of the respondent?

The appellants contend that the letter of 3 February 2012, written by their legal practitioners to the mother church, did not communicate their resignation from the mother church. Against this contention is a specific finding made by the court a quo that the first appellant had resigned from the respondent's church. The contents of the letter have been quoted above.

It must be noted that the letter was written on 3 February 2012, days after the suspension of the first appellant from the respondent's church. The first appellant had been suspended from the respondent's church on 25 January 2012. The terms of the suspension were, inter alia, that the first appellant was suspended immediately from all activities associated with the respondent church. It therefore follows that any activity that the first appellant purportedly did on behalf of the church, after his suspension, was null and void. As long as the suspension was still in force, any purported act by the first appellant, on behalf of the respondent, was of no effect.

The letter in question was written by the law firm, Cheda and Partners, on the instructions of the first appellant who had been suspended from the respondent church. The author of the letter, at law, is undoubtedly the first appellant. It is worth observing that the legal practitioners who wrote the letter in question state that they are lawyers for the respondent, the first appellant and the Board of Trustees of the respondent. In this letter, the first appellant sought to act on behalf of the respondent as noted from the cited parties. The contents of the letter therefore, prima facie, reflects that the first appellant was representing the respondent. This could not be possible as the first appellant had been suspended by the respondent.

Be that as it may, the pertinent question that this Court is seized with is whether the letter communicates a resignation by the appellants from the respondent' church. In the event that this Court is to find that it communicates a resignation, does it then follow that the appellants are no longer members of the respondent despite the absence of dismissal of the appellants by the respondent?

It is also worth noting the letter in question contains very strong doctrinal issues. Is it a form of schism, a declaration of independence from the parent church?

In the case of Independent African Church v Maheya 1998 (1) ZLR 552 (H), DEVITTIE J reflects on the historical schisms generated by the passion of church conflicts, thus:

“Even at birth, the Christian Church experienced a great schism…,. It came about when a convert of the early church, Paul, adapted Christianity to meet the needs of all mankind and freed it from the local and national parameters…,.

Another schism which took place in early times was the Reformation. The growth of national consciousness in medieval times, in part, motivated the great conflict the Catholic Church and Protestantism. The spirit of nationalism could not accommodate the claims of the papacy, a non-national authority, to moral dictatorship. This schism has raged for centuries and continues to this day..,.

In like vein, the spirit of freedom radiated by the advent of democratic Government in Zimbabwe in 1980 precipitated a rapid growth of independent churches in Zimbabwe. I use the word 'independent' to denote churches with no association or affiliation to the established churches.”...,.

However, before the ink was dry on the above judgment, the schism had spread to local branches of established churches and the relationship between the parent churches and their local branches is currently undergoing serious strains as the present case clearly demonstrates. The relationship between the metropole-based parent churches and their peripheral local branches, that was forged under brutal colonial conquest and tenuously survived the bitter struggles of independence, must now respond to the democratic dispensation demands and not wish away the tensions as mere ruses of charlatans and greedy leaders of the poor peripheral congregations.

But how are the church property disputes to be resolved?

The Independent African Church v Maheya 1998 (1) ZLR 552 (H) case provides some useful indications. Quoting several USA Supreme court cases, the learned judge in that case teases out a number of useful principles. From the case of Watson v Jones 80 US (13 Wall) 679 (1871), the following principles emerge:

“The Federal Courts are competent to enforce express terms contained in trust instruments governing the use of ownership of property. However, courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property.”...,.

In the case of Presbyterian Church in the United States v Mary Elizabeth Hulle Memorial Presbyterian Church 393 US 440 (1969), the Supreme Court held:

“..., there are neutral principles of law, developed for use in all property disputes, which can be applied without 'establishing' churches to which property is awarded. But First Amendment values are plainly jeopardised when church property litigation is made to turn on the resolution, by civil courts, of controversies over religious doctrine and practice.”...,.

In Jones v Woolf 443 US 595 (1979), the “neutral principles” approach was supported by the Supreme Court, thus:

“This method relies, exclusively, on objective, well established concepts of trust and property law and formulae familiar to lawyers and judges. It thereby promises to free civil courts completely from the entanglement of religious doctrine, policy and practice.”

Thus, the principles developed in the USA for resolution of church property disputes which may be applied with much benefit in our jurisdiction may be summarized as follows:

1. Civil Courts will enforce express terms governing the use and ownership of property contained in church documents, such as Constitutions, trust instruments, canons, etc.

2. Civil Courts may not resolve or inquire into matters of religious doctrine in order to determine entitlement to property.

3. Civil Courts may apply neutral principles of law, which are objective, well-established concepts of trust and property law and formulae familiar to lawyers and judges; and avoid entanglement in religious doctrinal issues, policy and practice whether pertaining to the ritual of liturgy of worship or the tenets of faith.

Applying the above principles to the facts of this matter:

(a) In resolving church property disputes, it is improper to get entangled in the doctrinal issues as the court a quo, in my view, unfortunately, did.

The question of choir uniforms and how they are to be worn, whether the appellants exhibited behaviour amounting to schism or denounced the founding principles of the respondent or their propensity to seek legal redress in disputes with congregants contrary to Biblical teachings are all doctrinal issues that cannot be the bases of resolving the property dispute. The exceptional circumstances in the case of Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12 (hereinafter the “CPCA case”) are distinguishable from the current one.

In Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48/12..., people who had been members of the Board of Trustees for the church but withdrew their membership from the church and formed a new church organization were held to have resigned from their offices thereby losing the right to control the original church's property such as buildings, houses, schools, motor vehicles and funds in banks. In this regard, MALABA JA..., had this to say in Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12:

“The court does not discuss the truth or reasonableness of any of the doctrines of the religious group. It does not decide whether any of the doctrines are or are not based on a just interpretation of the language of the Holy Scriptures. While the court does not take notice of religious opinions, with a view to deciding whether they are right or wrong, it might notice them as facts pointing to whether a person has withdrawn his or her membership from the church and should possess and control church property.”

(b) This Court accepts as a correct statement of law made in Independent African Church v Maheya 1998 (1) ZLR 552 (H)..., and relied upon in Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12..., that disputes over ownership or possession and control of church property should be resolved, in the first instance, on the basis of the interpretation and application of the law of voluntary associations.

Therefore, the Constitution of a voluntary association and rules governing it can be relied upon in solving property disputes. This is in line with the first principle noted above that civil courts will enforce express terms governing the use and ownership of property contained in church documents, such as Constitutions, trust instruments, canons, etc.

(c) Finally, the court may have resort to neutral principles of law, which are objective, well-established concepts of trust and property law.

In the present case, the question to answer is whether the first appellant, having been suspended from the respondent, and while that suspension subsists, can retain control of the property and assets of the respondent?

This issue can be resolved without the court entangling itself in doctrinal issues of whether questioning the relationship between the parent and local churches, the way the first appellant did, amounts to secession or schism or at what stage suggesting Constitutional arrangements becomes rebellion against fundamental tenets of the faith and ceases to be a normal, albeit vigorous, democratic discourse?

When can a church member be held to have so denounced the fundamental principles that lie at the heart of a church that he or she divests himself or herself from being a member of the respective church and becomes dis-entitled from access to its properties?

The best answer is that it is a matter of opinion, a matter of degree, and an issue of doctrinal intricacies that courts are ordinarily unfamiliar with. It was, therefore, a misdirection for the court below to base its decision on these doctrinal imponderables.

In Jakazi & Anor v Anglican Church of the Province of Central Africa SC10-13, this Court dealt with the issue of resignation as an objective fact. In communicating resignation, a party gives notice. The giving of notice is a unilateral act which needs no acceptance. Whether or not a party resigned is a question of fact.

The sentiments of this court in Church of the Province of Central Africa Ltd & Anor v Diocesan Trustees for the Diocese of Harare SC48-12 are instructive with regard to resignation of church members:

“Where the evidence shows that the individual exercised his/her right to terminate the relationship with the Church, the resignation takes effect immediately the conduct is committed. This is so unless there is a special provision by virtue of which it takes effect upon acceptance by the person who is given the right to receive written notice and decide whether to accept the resignation or not. The law is clear. Whether it is under Article 4 or 13 resignation is a unilateral act. Its validity does not depend upon acceptance by the person to whom it is directed. Acceptance determines when the resignation takes effect. In the final analysis, it is for the court and not the individual concerned to decide whether his conduct amounts to resignation or not.”

It must be emphasized that the ideal position is for voluntary associations to discipline their own members, either by dismissing or suspending them in terms of their set procedures.

In this case, the respondent conducted a disciplinary hearing against the first appellant for charges preferred against him. The disciplinary hearing proceeded in the absence of the first appellant despite his being properly served. At this disciplinary hearing, the decision to suspend the first appellant was “confirmed”.

It is for the church to dismiss the appellants and not for this court to do so in its stead.

The respondent is enjoined to take steps to terminate its relationship with a member who denounces its authority, and the Civil Court will give due deference to that decision in the absence of arbitrariness, bias, or unreasonableness.

What was placed before the court was, in fact, a process upholding the first appellant's suspension. Nothing shows that the appellants were dismissed, and, therefore, ceased to be members of the respondent. Suspension, cannot, by any stretch of the imagination be a method of terminating a relationship between parties. The first appellant therefore remains suspended and not dismissed from the respondent.

There is no record of the second, third and fourth appellants being charged with any misconduct let alone being suspended or dismissed from the respondent's church. There is, therefore, no basis, in my view, to declare that the second, third and fourth appellants ceased to be members of the respondent.

The court a quo erred in doing so.

All in all, therefore, there is sufficient ground to allow the appeal, with each party bearing its own costs. That part of the order of the court a quo declaring the first, second, third and fourth appellants as having ceased to be members of the respondent is not supportable, has to be set aside and replaced with an order declaring the first appellant and all those claiming through him to be barred from controlling or accessing the respondent's properties or amenities on account of the first appellant's extant suspension. All specific references to the second, third and fourth appellants in the order of the court a quo are also improper and have to be removed. Given this partial success by the appellants, it is proper that each party shall bear its own costs.

Accordingly, it is hereby ordered that:

1. The appeal is allowed with each party bearing its own costs.

2. The judgment of the High Court, in Case No. HC1451/13, be and is hereby set aside and substituted as follows:-

“IT IS DECLARED, WITH EACH PARTY BEARING ITS OWN COSTS, THAT:

(a) The 1^st respondent having been suspended on 25 January 2012 by the parent church, and while that suspension remains extant, has no right to personally, or by anyone claiming through him, make use of any of the applicant's properties or amenities as well as its name.

(b) The 1^st respondent, or anyone claiming through him, shall immediately stop and shall at all times desist from making use of applicant's name or any such name which may reasonably be confused with applicant's name and which may give the impression that they have any continuing association with applicant.

(c) The 1^st respondent, or anyone claiming through him, shall immediately relinquish possession and use of all of applicant's properties both movable and immovable whether held by them directly or by those claiming the right of use or occupation through them which are set out in 'c1' below and shall concede such use and possession to the applicant.

1. LAND AND BUILDINGS

1. Bulawayo: Church at Stand 61000, Size Road, and adjacent Stands for youth and women, Western Commonage No.6 Pelandaba;

2. Stand 36E, 37E, 38E,39E,40E, 54E, 55E Bekezela Street, Pelandaba;

3. House at No.16 Amantje Road, Four Winds, Bulawayo;

4. Greengables Farm, the remaining extent of Subsdivision B of Dunstaal, Khami;

5. Plot 11 and 12, Shamrock Road, Gweru;

6. Lower Gweru at Gwabada Farm and Ekukhanyeni Weaving Centre;

7. Kwekwe: Stand No.383 Mbizo Township Church and residence, Amaveni Township Church;

8. Kadoma: Stand No.4 Bwanali Street, Rimuka Township Church and Mission residence;

9. Chegutu: Stand 2134 Heroes Township Church and Mission residence at 550 Pfupajena Township;

10. Masvingo: Stand 14 Mucheke Township, Masvingo;

11. Mutare: Stand No.7 Machekaire Street, Dangamvura Township, Mutare;

12. Buhera: Murambinda Township Church Stand;

13. Nyanga: Church at Bonde Kraal;

14. Mount Selinda: Chako Township Church Stand;

15. Chinhoyi: Stand 1159 Hunyani Township Church and residence;

16. Mahororo Business Centre Church, Hurungwe;

17. Beitbridge: Stand 2384 Dulibadzimu and residence at No.9;

18. Victoria Falls: Stand 2647 Victoria Falls;

19. Kariba: Stand 1727 Nyamhunga Township;

20. Chiredzi: 51 Makaza Triangle, No.6 Nzimbe Township, Triangle;

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